Discharge under Cr.PC in criminal cases

APPLICATION FOR DISCHARGE IN CASES INSTITUTED BASING ON POLICE REPORTS AND OTHERWISE

by

K.SRINIVASA RAO,

Principal Senior Civil Judge, Rajampet

Under Criminal Procedure Code.1973 (for short Cr.P.C) ‘Discharge’ application is the remedy provided to the person who has been charged maliciously. If the false allegations have been made against him, he can file an application for discharge. He is entitled to discharge, if the evidence provided to the Court is not sufficient to prove the offence.

• Classification of Criminal Cases

There are two major classifications of criminal cases under Cr.P.C:

1. Cases instituted basing on police report
2. Cases instituted on complaint

Further the Cr.P.C provides for four types of trial procedure. They are

1. Trial before a court of Sessions,
2. Trial of warrant cases by Magistrates,
3. Trial of summons cases by Magistrates, and
4. Summary trials. Both the trial before the court of sessions and warrant cases by Magistrates are tried under the procedure of warrant cases and the remaining two are tried in a summons cases trial.

• What are Summons Cases?

Sec.2 (w) Cr.P.C:- ''Summons – case'' means a case relating to an offence and not being a warrant case.

• What are Warrant Cases?

Sec.2(x) Cr.P.C: ''Warrant case'' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

• Discharge of accused in Warrant Cases instituted basing on Police Report

The general process of law is that after the police on completing its investigation, files the final charge sheet against the accused under section.173 Cr.P.C. Thereafter the accused is put to trial for framing of charges against him, by the concerned Court. However there lies a

provision under section.239 and 227 of Code of Criminal Procedure that the Accused person can be discharged before the charges are framed against him. These provisions can be resorted to by the Accused in warrant cases only.

• When accused shall be discharged in warrant case instituted  on police report before Magistrate

Section.239 Cr.P.C, When accused shall be discharged. - If, upon considering the police report and the documents sent with it under Section.173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

At the stage of framing of a charge by magistrate, probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution have to be accepted as true at that stage. The crystallized judicial view is that the Court cannot conduct a deep roving enquiry into the evidence at this stage.

• Whether the material produced by accused can be looked into by Magistrate?

In Satish Mehra v. Delhi Administration and Another reported in (1996) 9 SCC 766, the Hon’ble Apex Court observed that; Under Section.239 of the Code (which deals with trial of warrant cases on police report). The Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. The Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next Stage. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.

• When accused shall be discharged in Sessions trail

Section.227 of Cr.P.C provides that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Discharge can be ordered only after considering averment in charge-sheet and the relevant case-law.

• The Sessions Judge is bound to discharge the accused in the following cases:

1. Where the evidence produced is not sufficient
2. Where there is no legal ground for proceeding against the accused
3. Where no sanction has been obtained
4. Where the prosecution is clearly barred by limitation or
5. Where he is precluded from  proceeding because of a prior judgment of High Court.

• How to determine Sufficient ground

There is no sufficient ground for proceeding” means that no reasonable person can come to the conclusion that there is any ground whatsoever to sustain the charge against the accused. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or sheer waste of time, he has to discharge the accused For the purpose of determining whether there is sufficient ground for proceeding against an accused, the Court possesses a comparatively wider discretion to determine the question whether the material on record, if un-rebutted is such on which a conviction can be said to be reasonably possible. the words “not sufficient ground for proceeding against the accused” appearing in the Section.227 postulate exercise of judicial mind on the part of the judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to shift and weigh the material for the limited purpose of finding out whether or not a prima-facie case against the accused has been made out.

• How to determine prima-facie case

The test to determine a prima-facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if un-rebutted, make a conviction reasonably possible.

The word ‘ground’ in the context is not a ground for conviction, but a ground for putting the accused on trial. The ground may be that the evidence produced is not sufficient for the judge to proceed against the accused or it may be that the Sessions Judge finds that the accused cannot be proceeded with as no sanction has been obtained or that the prosecution is barred by limitation or that he is precluded from holding the trial because of a prior judgment of the High Court.

• Whether the material produced by accused can be looked into by session’s court?

In Satish Mehra v. Delhi Administration and Another reported in(1996) 9 SCC 766, the Hon’ble Apex court observed that if the accused succeeds in producing any reliable material at the stage of taking cognizance or framing of charge which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material should be looked into by the court at that stage. It was held that the object of providing an opportunity to the accused of making submissions as envisaged in Section 227 of the Cr.P.C., is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. It was further observed that there is nothing in the Code which shrinks the scope of such audience to oral arguments and, therefore, the trial court would be within its power to consider even material which the accused may produce at the stage contemplated in Section.227 of the Code.

• The ambit and scope of power of the Court at the time of considering the discharge application

In Union of India Vs. Prafulla Kumar Samal & Another, (1979) 3 SCC 4 the Apex court in paragraph No 7 held that:

“The words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to  frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section.227, the Judge has merely to sift the evidence. in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.”

A Three-Judge Bench of Hon’ble Apex Court in State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568, it was held that Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements. 

• Nature of jurisdiction to be exercised by the Court at the time of discharge

While considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.

• Discharge Post Framing of Charge

Once the charge has been framed, the accused has to be put on trial and thereafter convicted or acquitted, he cannot be discharged.

Discharge post framing of charge is not contemplated in Cr.P.C-Held in Tapati Bag Vs Patipaban Ghosh reported in 1993 Cr.L.J 3932(cal).

• Discharge Not Acquittal

The discharge of an accused under Sec.227 Cr.P.C., does not tantamount to acquittal of an accused. P Vishwanathan Vs A.K Burman reported in 2003 Cr L J 949 (959) (cal – DB)

• Is the Magistrate obliged to Record Reasons

In Sankaranda Nayak vs State of Orissa reported in 2001(1) crimes 564 (569) it was held that the Magistrate is obliged to record his reasons if he decides to discharge the accused.

• Review of Order of Discharge

An order of discharge under this section does not amount to acquittal as no trial has taken place and as such fresh trial can be held and for fresh trial, cognizance can be taken on the basis of fresh materials. Where the Magistrate had discharged some of the accused but after recording the evidence let in by the prosecution, fresh materials were found against the discharged accused, he can take cognizance of the offence as it is not a case of reviewing the order of discharge passed by the Magistrate earlier. It was held in Vishanu Murya vs State of Rajasthan reported in 1990 cr L J 1750 (Raj)

• Discharge of the accused by Magistrate in Cases exclusively Triable by Court of Sessions

There is no provision which empowers the Magistrate to discharge the accused. Power of discharge can be exercised only by a trial court and the court of the Judicial Magistrate is not the trial Court in respect of the offences exclusively triable by a court of session. Held in Sanjay Gandhi vs Inion of India reported in AIR 1978 SC 514

• Discharge of accused in Warrant Cases instituted basing on Complaint

Sec 245 Cr.P.C.: When accused shall be discharged;

If upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such magistrate, he considers the charge to be groundless.

There is a clear difference in Sections.245(1) and 245(2) of the Cr.P.C. Under Section.245(1), the Magistrate has the advantage of the evidence lead by the prosecution before him under Section.244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.

The situation under Section.245(2) Cr.P.C. is, however, different, under Sub-section(2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is lead. However, for discharging an accused under Section.245(2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section.244 Cr.P.C. The words appearing in Section.245(2) Cr.P.C. "At any previous stage of the case", clearly bring out this position.

What is that "previous stage"

The previous stage would obviously be before the evidence of the prosecution under Section.244(1) Cr.P.C, is completed or any stage prior to that. Such stages would be under Section.200 Cr.P.C to Section.204 Cr.P.C.

• Discharge in Summons Case

Whether the magistrate, in a 'Summons case based on a complaint' has the power to drop proceedings and discharge an accused, or not?

Section 251 of the Cr.P.C reads as follows

251. Substance of accusation to be stated:- When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge. On a bare reading, of section.251 Cr.P.C, it becomes apparent

that there is no specific power of discharge or dropping of proceedings available with the Magistrate in a Summons Trial.

In K.M.Matthew v. State of Kerala reported in (1992) 1 scc 217 Where the accused had sought recalling of the summoning order in a Summons Case. The Honorable Supreme Court, held that "If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused" With these observations, the proceedings against the accused were dropped.

The correctness of the legal proposition set out in K.M.Mathew (supra) came up for consideration before the Supreme Court in in Adalat Prasad v. Rooplal Jindal & Ors reported in 2004 (7) SCC 338 wherein a three Judge bench was specially constituted since the validity of K.M.Mathew (supra) was open to question. The Court held that "If the Magistrate issues process without any basis, the remedy lies in petition u/s 482 of the Cr.P.C, there is no power with the Magistrate to review that order and recall the summons issued to the accused"

The decision in Adalat Prasad was reaffirmed by the Supreme Court in Subramanium Sethuraman v. State of Maharashtra & Anr reported in (2004) 13 scc 324 (which was a Summons Case relating dishonour of cheque u/sec.138 of the Negotiable Instruments Act, 1881 - "NI Act"), Wherein it was held that: Discharge, Review, Re-Consideration, Recall of order of issue of process u/s.204 of the Cr.P.C, is not contemplated under the Cr.P.C in a Summons Case. Once the accused has been summoned, the trial court has to record the plea of the accused (as per Section.251 of the Cr.P.C) and the matter has to be taken to trial to its logical conclusion and there is no provision which permits a dropping of proceedings, along the way.

However in Bhushan Kumar v. State (NCT of Delhi) reported in 2012 (5) SCC 424 it was ruled that the Magistrate has the power to discharge an accused in a Summons Case. It was followed in a catena of decisions including Urrshila Kerkar V. Make My Trip (India) Private Ltd (2013 SCC Online Del.4563) with the following observations:

"It is no doubt true that Apex Court in Adalat Prasad Vs. Rooplal Jindal and Ors. (2004) 7 SCC 338 has ruled that there cannot be recalling of summoning order, but seen in the backdrop of decisions of Apex Court in Bhushan Kumar and Krishan Kumar (supra), aforesaid decision cannot be misconstrued to mean that once summoning order has been issued, then trial must follow. If it was to be so, then what is the purpose of hearing accused at the stage of framing Notice under Section 251 of Cr.P.C. In the considered opinion of this Court, Apex Court's decision in Adalat Prasad (supra) cannot possibly be misread to mean that proceedings in a summons complaint case cannot be dropped against an accused at the stage of framing of Notice under Section 251 of Cr.P.C, even if a prima-facie case is not made out."

The recent order of the Supreme Court in Amit Sibal v. Arvind Kejriwal (2016 SCC OnLine SC 1516) suggest that the trial court has no power to drop proceedings/discharge in a Summons Trial.

So placing reliance on Subramanium Sethuraman (supra) (supported broadly by Amit Sibal v. Arvind Kejriwal -supra) and the bare provisions of Cr.P.C, constrain us to conclude that there is no such provision in Cr.P.C, that permits a 'discharge' or 'dropping of proceedings' in a Summons Case.

• CONCLUSION:

'Let a hundred guilty be acquitted, but one innocent should not be convicted'

This maxim is based on Blackstone's formulation that "It is better that ten guilty persons escape than that one innocent suffer". It was expressed by the English jurist William Blackstone in his seminal  work, Commentaries on the Laws of England, published in the 1760s.

This statement is the guiding principle behind rules of procedure and evidence guiding our courts, when any law relating to procedure and evidence requires interpretation, the interpretation

given to such provision is usually in favor of the accused upholding the presumption of innocence. The reason for this is to ensure that the police and prosecution do their job right, and to ensure that an over- zealous prosecution does not result in an innocent man being convicted of a crime he did not commit, otherwise people did not have faith and respect for the justice delivery system.

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By Team My Rights